Allen v. Mackie

Filing 15

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. It is therefore ORDERED that the Petition is DISMISSED without prejudice and without requiring Respondent to file an Answer or return. Signed by Honorable Timothy M Cain on 11/14/2012.(cwhi, )

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Comest Sabatino Allen, # 300353,
Petitioner,
v.
Warden McKie,
Respondent,

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CIA No. 9:12-2583-TMC-BM

REPORT AND RECOMMENDATION

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Comest Sabatino Allen ("Petitioner"), proceedingpro se, brings this action for habeas
corpus relief pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner incarcerated at the Kirkland
Correctional Institution in Columbia, South Carolina, and he files this action in forma pauperis
under 28 U.S.C. § 1915.
Petitioner alleges on July 18,2012, ajury convicted him of ABHAN, failure to stop,
driving under the influence, and leaving the scene of an accident in the Greenville County Court of
General Sessions, and he received a 10-year sentence of imprisonment. Pet. 1, ECF No.1. He
seems to allege that he did not file a direct appeal because his attorney failed to do so. Pet. 7.
Further, he seems to allege that he has not filed any other petitions, applications, or motions
concerning this judgment of conviction in any state court. Pet. 3. In the petition, he raises several
grounds for relief, including violations of his constitutional rights because the ABHAN charge was
not indicted by a grand jury, his right to a speedy trial was violated, ineffective assistance ofcounsel,
the state failed to prove the elements ofhis conviction, and the trial was unfair because the judge was
not informed about his mental illness. Pet. 5-10. Petitioner requests a reversal of his ABHAN
conviction and a hearing on his speedy trial allegations. Pet. 14.

Pro Se Habeas Review
Under established local procedure in this judicial district, a careful review has been
made of the pro se petition filed in the above-captioned case. The review was conducted pursuant
to the procedural provisions of28 U.S.C. § 1915, the Rules Governing Section 2254 Proceedings
for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992);

Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim
v. Warden, Md. House ofCorr., 64 F.3d 951 (4th Cir. 1995); Toddv. Baskerville, 712 F.2d 70 (4th
Cir. 1983).

Pro se petitions are held to a less stringent standard than those drafted by attorneys,
see Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam), and a federal district court is charged with
liberally construing a petition filed by a pro se litigant to allow the development of a potentially
meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972).
However, even when considered under this less stringent standard, the petition submitted in the
above-captioned case is subject to summary dismissal. The requirement ofliberal construction does
not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a
claim currently cognizable in a federal district court. See Weller v. Dep't ofSoc. Servs., 901 F.2d
387 (4th Cir. 1990).
Discussion
This petition for a writ ofhabeas corpus under 28 U.S.C. § 2254 should be dismissed
because Petitioner has not yet exhausted his state court remedies. With respect to his conviction and
sentence, Petitioner may seek a writ of habeas corpus under 28 U.S.C. § 2254 only after he has
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exhausted his state court remedies. See 28 U.S.C. § 2254(b); Woodford v. Ngo, 548 U.S. 81,92
(2006) (noting that a "state prisoner is generally barred from obtaining federal habeas relief unless
the prisoner has properly presented his or her claims through one 'complete round of the State's
established appellate review process"'). To exhaust state court remedies in South Carolina, a direct
appeal may be pursued. See State v. Northcutt, 641 S.E.2d 873 (S.C. 2007). If a direct appeal was
filed and is ultimately unsuccessful (or if no direct appeal was filed), a petitioner may file an
application for post-conviction relief ("PCR") in a court of common pleas. See S.C. Code Ann
§ 17-27-10 et seq. (1976); see also Miller v. Harvey, 566 F.2d 879,880-81 (4th Cir. 1977) (noting
that South Carolina's Uniform Post-Conviction Procedure Act is a viable state court remedy). If a
South Carolina prisoner's PCR application is denied or dismissed by a court of common pleas, a
petitioner can file a request for writ of certiorari with a South Carolina appellate court. See S.C.
Code Ann § 17-27-100 (1976); Knight v. State, 325 S.E.2d 535 (S.C. 1985). In fact, ifa petitioner's
PCR application is denied by a court of common pleas, the petitioner must seek appellate review in
the state courts or federal collateral review of the grounds raised in his PCR application may be
barred by a procedural default. See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004)
(finding that exhaustion requires state prisoners to complete at least one complete round ofthe state's
established appellate review process by presenting the ground for relief in a face-up and square
fashion).
In this case, because it appears that Petitioner did not file a direct appeal, the South
Carolina statute requires that a PCR application must be filed within one year after the entry of a
judgment of conviction. See S.c. Code Ann. § 17-27-45(A) (1976). Petitioner alleges that his
conviction and sentence occurred on July 18, 2012, so it appears that he has approximately one year

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thereafter to file a PCR application in the Greenville County Court of Common Pleas. Thus, at this
point there does not appear to be the absence of available state corrective process. See 28 U.S.C. §
2254(b)( I )(8). The United States District Court for the District of South Carolina should not keep
this case on its docket while Petitioner is exhausting his state remedies. 1 See Galloway v.

Stephenson, 510 F. Supp. 840, 846 (M.D.N.C. 1981) ("When state court remedies have not been
exhausted, absent special circumstances, a federal habeas court may not retain the case on its docket,
pending exhaustion, but should dismiss the petition. ").
Recommendation
Accordingly, it is recommended that the § 2254 petition be dismissed without
prejudice and without requiring the Respondent to file an answer or return.
Petitioner's attention is directed to the important

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October (~ ,2012
Charleston, South Carolina

1) There are specific time limitations for filing a habeas action in this federal court pursuant to 28
U.S.C. § 2254. See 28 U.S.C. § 2244(d).

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Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and
Recommendation with the District Judge. Objections must specifically identify the portions of the
Report and Recommendation to which objections are made and the basis for such objections. "[I]n
the absence ofa timely filed obj ection, a district court need not conduct a de novo review, but instead
must 'only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.'" Diamondv. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting
Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of
this Report and Recommendation. 28 U.S.c. § 636(b)(l); Fed. R. Civ. P. 72(b); see Fed. R. Civ.
P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by
mailing objections to:
Larry W. Propes, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation
will result in waiver of the right to appeal from a judgment of the District Court based upon
such Recommendation. 28 U.S.C. § 636(b)(l); Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).